Page:Harvard Law Review Volume 32.djvu/265

DUE PROCESS OF LAW— TO-DAY 229 appealed against drastic legislation, Comstock, J., said that "we must be allowed to know that intoxicating liquors are produced for sale and consumption as a beverage." Surely not a very great as- sumption, but so taking judicial cognizance of social and business conditions, putting the court's own construction on that of which cognizance is taken, and then judging the legislative act by the re- sult thereof, is practically making a category of reasons, judicially recognized, and then inquiring whether any of those reasons sup- port the statute. That the legislators knew none of them, or rejected them, is immaterial. Does it not seem clear that if the reasonableness of a body of railway rates could be tested by suit, the same inquiry must be open as to every serious regulation of any business, trade, or pro- fession of a gainful nature? So it has been; and for something less than thirty years we have had every species of state action produc- tive of pecuniary loss to vested rights, or limiting business liberty, put to the acid test of due process in the Supreme Court. The result to-day of an enormous expenditure of argument and output of opinions may be measured in respect of either the nature of judgments given, or methods of reaching judgment. The mandate filed is usually of agreement with the legislature; in the ten years from 1890 there were one hundred and ninety-seven appeals over due process, but only six times in that century were such important matters as transportation rates successfully at- tacked; and speaking generally state courts having a reputation for independence and vigor are always sustained. Taking Massa- chusetts, New Jersey, and New York together, I can recall only one case in which the highest state tribunal has been reversed on the process clause. Considering (rather loosely) the legal topics usually suggestive of complaints of undue process, -r- as to proce- dure we stand on Pennoyer v. Nef, — applied sometimes in a way that must still disturb Justice Field. Taxation is always due in process if it is a real tax on property or rights within the jurisdic- tion, confirmed after hearing. Police power once freed from the shackles of the historic test has overshadowed every other head of litigation, and even eminent domain has advanced; for anything as yet discovered and deemed good for the public by the legisla- ture is sufficiently eminent to have domain, and thus ex vi termini become due process. This form of statement may interest us as